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franklin county times

Pushing the limits of the appeal process

By By Suzanne Monk / managing editor
August 1, 2004
A remarkable appeal has been filed in Lauderdale County Court on behalf of retired Col. Joe H. Bryant Jr.
He was a party in a simple assault trial in June in Lauderdale County Justice Court. His attorney, Bill Ready Jr., has now appealed the outcome of that trial to County Court Judge Frank Coleman.
What makes Bryant's appeal unusual is that he was not the defendant. He was the person who filed the simple assault charges. Justice Court Judge William Gunn dismissed those charges right after Ready, the state's special prosecutor, rested his case ruling that the issues were so clear there was no need to hear from any defense witnesses.
It's over, right?
The defendants have been found "not guilty" and the Fifth Amendment protects citizens from double jeopardy, which is being tried twice for the same alleged crime.
Ready's appeal is a little like District Attorney Bilbo Mitchell appealing an acquittal in a felony trial to the Mississippi Supreme Court and it seems just as unwinnable.
The Moose trial'
Without going into a lot of background, the incident that caused Bryant to file charges happened in September 2003.
At that time, Bryant was the object of some ill will (still is) because he had made allegations of racial bigotry, fraud and favoritism at the 186th Air Refueling Wing. He ran into two former members of the unit at the Moose Lodge one night.
It was not a good situation.
The state's prosecution witnesses testified that the two defendants, Leslie "Zero" Wilkes and Tommy Temple, taunted Bryant and talked about beating him up. They testified that Wilkes went over to Bryant's table and shoved him with his shoulder. The Moose governor was concerned enough walk over to Bryant's table and check on him. Two people offered to walk Bryant out to his truck; one of them said: "I thought he might want me to stay in case they jumped him or anything."
And, the state rested.
At that point, defense attorneys moved for an immediate dismissal of the charges. Judge Gunn granted their motions, noting that Bryant could have simply left, that's what he would have done: "If I am in fear, and afraid someone is going to whip my patoot, I am going to get away."
After the trial, one of the defense attorneys described the filing of charges as a "colossal overreaction by Mr. Bryant."
I don't entirely disagree.
Most people wouldn't have had Wilkes and Temple arrested. But, Mississippi's simple assault statute isn't about what most people would have done. It's about what a particular complainant did and felt.
The appeal
This is the basis of the appeal Ready filed last week.
In the absence of testimony from any defense witnesses, Ready says the judge committed reversible error ignoring uncontradicted testimony and/or incorrectly applying the standard of law defining simple assault. He cites specific examples, including:
Judge Gunn's comment that Bryant could have left at any time seems to imply that he should have. Ready argues Bryant had a legal right to be at the Moose Lodge and was under no obligation to prevent a fight by running from it.
Simple assault need not include physical contact. The Mississippi Court of Appeals, Ready wrote, has held that an assault can occur if the defendant simply approaches the complainant in a confrontational and intimidating manner. Ready says that's not the case here. Witnesses testified that Wilkes, at least, shoved Bryant.
Finally, Ready says Judge Gunn based his ruling on what he would have felt and done instead of what Bryant felt and did.
A couple of observations
One, this is a lot of drama over a simple assault charge, which makes me think there's more to it than meets the eye.
Two, Ready is arguing a very narrow basis of appeal the idea that the state has as much right to a fair trial as the defendants. To win a new trial, Ready would have to prove Judge Gunn deliberately ignored the law. That's a difficult appeal under any circumstances, much less these.
Three, trying to puncture the Fifth Amendment's protection against double jeopardy of retrying defendants already found "not guilty" makes me a little queasy. But, then, I don't think this is about the defendants anymore.
Suzanne Monk is managing editor of The Meridian Star. Call her at 693-1551, ext. 3229, or e-mail
smonk@themeridianstar.com.

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